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BILL LOCKYER
Attorney General
:
OPINION : No. 99-617
:
of : September 16, 1999
:
BILL LOCKYER :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
CONCLUSION
1 99-617
ANALYSIS
Section 400 of the Family Code1 generally sets forth who may solemnize
marriages in California. It provides:
Subdivision (e) was added to section 400 in 1998 (Stats. 1998, chs. 931, 932) and is the
focus of this opinion. Does the phrase “constitutional officer of this state” include a county
sheriff, district attorney, assessor, or supervisor? We conclude that it does not.
1
Section references are to the Family Code unless otherwise indicated.
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of the Constitution states:
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
Accordingly, although the Constitution refers to county sheriffs, district attorneys, assessors,
and supervisors as being provided by the Legislature or county charter, it refers to the
Governor, Lieutenant Governor, Attorney General, Controller, Insurance Commissioner,
Secretary of State, and members of the State Board of Equalization as state officers.
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On June 23, 1999, the State Registrar of Vital Statistics (“Registrar”) gave the
following instruction to county clerks and county recorders regarding the new provisions of
subdivision (e) of section 400:
“Under the new law legislators who are elected members of the
California Assembly or Senate, a member of Congress (California
representative) and the following State constitutional officials may now
perform marriages:
• Governor
• Lieutenant Governor
• Attorney General
• Controller
• Insurance Commissioner
• Secretary of State
• Superintendent of Public Instruction
• Treasurer
• Members of the State Board of Equalization.”
We have reviewed the legislative history of the 1998 amendment of section 400 which
added subdivision (e). Nothing therein contradicts the administrative construction of the
statute by the Registrar.
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“. . . ‘Although not necessarily controlling, as where made without the
authority of or repugnant to the provisions of a statute, the contemporaneous
administrative construction of [an] enactment by those charged with its
enforcement . . . is entitled to great weight, and courts generally will not
depart from such construction unless it is clearly erroneous or unauthorized.’
(Coca-Cola Co. v. State Bd. of Equalization (1945) 25 Cal.2d 918, 921.)”
*****
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